IN THE UNITED STATES DISTRICT COURT
The United States of America and Nippon Electrode Company, Ltd., (hereinafter "NDK"), a corporation organized and existing under the laws of Japan, hereby enter into the following Plea Agreement pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P.").
1. NDK understands its right:
AND WAIVE CERTAIN RIGHTS
2. NDK waives the rights set out in Paragraph 1(b)-(i) above, waives all jurisdictional defenses to the prosecution of this case, waives all objections to venue, and agrees voluntarily to consent to the jurisdiction of the United States to prosecute this case against it in the United States District Court for the Eastern District of Pennsylvania. Pursuant to Rule 7(b), Fed. R. Crim. P., NDK will waive indictment and plead guilty pursuant to Fed. R. Crim. P. 11(e)(1)(C) to a one-count Information, to be filed in the United States District Court for the Eastern District of Pennsylvania. The Information will charge NDK with participating in a conspiracy to suppress and eliminate competition by fixing the price of carbon cathode block sold in the United States and elsewhere beginning at least as early as February 1996, and continuing until at least December 1997, in violation of the Sherman Antitrust Act, 15 U.S.C. § 1.
3. Pursuant to the terms of this Plea Agreement, NDK will plead guilty at arraignment to the criminal charge described in Paragraph 2 above, and will make a factual admission of guilt to the Court in accordance with Rule 11, Fed. R. Crim. P., as set forth in Paragraph 4 below.
4. Had this case gone to trial, the United States would have presented evidence to prove the following facts.
5. NDK understands that the maximum penalty which may be imposed against it upon conviction for a violation of the Sherman Antitrust Act is a fine in an amount equal to the largest of:
6. In addition, NDK understands that:
7. Sentencing for the offense to be charged will be conducted pursuant to the U.S.S.G. manual in effect on the day of sentencing. Pursuant to U.S.S.G. § 1B1.8, self-incriminating information provided to the United States pursuant to this Plea Agreement will not be used to increase the volume of affected commerce attributable to NDK or in determining the applicable Guidelines range, except to the extent provided for in U.S.S.G. § 1B1.8(b).
8. Pursuant to Rule 11(e)(1)(C), Fed. R. Crim. P., the United States and NDK agree that the appropriate disposition of the case is, and agree jointly to recommend that the Court impose, a sentence requiring NDK to pay a fine to the United States in the amount of $450,000, to impose no probation, and to pay no restitution. The United States and NDK further agree:
9. Subject to the full and continuing cooperation of NDK described in Paragraph 12 of this Plea Agreement, and prior to sentencing in the case, the United States will fully advise the Court of the fact, manner, and extent of NDK's ongoing cooperation and its commitment to prospective cooperation with the United States' investigations and prosecutions. The United States may comment on the evidence and circumstances of the case, bring to the Court's attention all facts relevant to sentencing, address the Court regarding the nature and seriousness of the offense, respond to questions raised by the Court, correct inaccuracies in the presentence report or sentencing record and rebut any statement made by or on behalf of NDK at sentencing.
10. The United States and NDK jointly submit that this Plea Agreement, together with the record that will be created by the United States and NDK at sentencing, and the further disclosure described in Paragraph 9 of this Plea Agreement, provides sufficient information concerning NDK, the offense charged and NDK's role in the offense to enable the meaningful exercise of sentencing authority by the Court under 18 U.S.C. § 3553. The United States and NDK will jointly request that the Court accept NDK's guilty plea and immediately impose sentence on NDK on the day of arraignment, pursuant to the provisions of Rule 32(b)(1), Fed. R. Crim. P., and U.S.S.G. § 6A1.1. The Court's denial of the request to impose sentence immediately based on the record provided by NDK and the United States will not void this Plea Agreement.
11. In light of the probability of civil causes of action, which potentially provide for a recovery of a multiple of actual damages, the United States agrees that it will not seek a restitution order with respect to the offense charged in the Information.
12. NDK, its parents and its subsidiaries will fully and truthfully cooperate with the United States in the prosecution of this case, the conduct of the current federal investigation of violations of the federal antitrust and related criminal laws in the carbon cathode block industry, any other federal investigation resulting therefrom, and any litigation or other proceedings arising or resulting from any such investigation to which the United States is a party ("Federal Proceeding"). Such cooperation shall include, but not be limited to:
13. The ongoing, full and truthful cooperation of each person described in Paragraph 12(b) above will be subject to the procedures and protections of this Paragraph, and shall include, but not be limited to:
14. Upon acceptance of the guilty plea called for by this Plea Agreement, imposition of the agreed-upon sentence, and subject to the cooperation requirements of Paragraph 12 of this Plea Agreement, the United States agrees that it will not bring further criminal charges against NDK, its parents or its subsidiaries for any act or offense committed prior to the date of this Plea Agreement that was undertaken in furtherance of or in connection with any attempted or completed antitrust conspiracy involving the manufacture and sale of carbon cathode block or in connection with any investigation thereof ("Relevant Offense"). The non-prosecution terms of this Paragraph do not apply to civil matters of any kind, to any violation of the federal tax or securities laws or to any crime of violence.
15. With respect to individuals, the United States agrees to the following.
16. The United States agrees that when any person travels to the United States for interviews, court appearances or grand jury appearances, pursuant to this Plea Agreement, or meetings with counsel in preparation thereof, the United States will take no action, based upon any offense subject to this Plea Agreement, to subject such person to arrest, service of process or prevention from departing the United States. This Paragraph does not apply to an individual's commission of perjury (18 U.S.C. § 1621), making false statements or declarations (18 U.S.C. § 1001), making a false statement or declaration in grand jury or court proceedings (18 U.S.C. § 1623), obstruction of justice (18 U.S.C. § 1503) or contempt (18 U.S.C. §§ 401-402) in connection with any testimony provided in trial, grand jury or other judicial proceedings in the United States.
17. NDK understands that it may be subject to administrative action by federal or state agencies other than the United States Department of Justice, Antitrust Division, based upon any conviction resulting from this Plea Agreement, and that this Plea Agreement in no way controls whatever action, if any, such other agencies may take. However, the United States Department of Justice, Antitrust Division, agrees that, if requested, it will advise the appropriate officials of any government agency considering administrative action against NDK, its parents or its subsidiaries, based upon any conviction resulting from this Plea Agreement, of the fact, manner and extent of the cooperation of NDK, its parents and its subsidiaries, as described herein, as a matter for such agency to consider before determining what administrative action, if any, to take with regard to NDK, its parents or its subsidiaries.
18. NDK has been represented by counsel and is fully satisfied that its attorneys have provided competent legal representation. NDK has thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised it of the nature of the charges, any possible defenses to the charges, and the nature and range of possible sentences.
19. NDK's decision to enter into this Plea Agreement and NDK's decision to tender a plea of guilty are freely and voluntarily made and are not the result of force, threats, assurances, promises or representations other than the representations contained in this Plea Agreement. There have been no promises or representations to NDK as to whether the Court will accept or reject this Plea Agreement.
VIOLATION OF THE PLEA AGREEMENT
20. NDK agrees that, should the United States determine in good faith, during the period any Federal Proceeding is pending, that NDK has failed to provide full cooperation (as described in Paragraph 12 of this Plea Agreement) or has otherwise failed to comply with any of the provisions of this Plea Agreement, the United States may notify counsel for NDK in writing by personal or overnight delivery or facsimile transmission of its intention to void any of its obligations under this Plea Agreement (except its obligations under this Paragraph), and NDK, its parents and its subsidiaries, as well as their current and former directors, officers and employees, shall be subject to prosecution for the substantive offense which is the subject of the investigation of carbon cathode block resulting in this Plea Agreement.
21. NDK understands and agrees that in any further prosecution of NDK, its parents and its subsidiaries, as well as their current and former directors, officers and employees resulting from the release of the United States from its obligations under this Plea Agreement because of NDK's violation of this Plea Agreement, any documents, statements, information, testimony or evidence provided pursuant to Paragraphs 12 and 13 of this Plea Agreement, and any leads derived therefrom, may be used against NDK, its parents and its subsidiaries, as well as their current and former directors, officers and employees, in any such further prosecution. Statements made by an individual who has complied fully with his obligations under Paragraph 13, however, may not be used directly against that individual. NDK hereby unconditionally waives its right, in any such further prosecution, to move to exclude such evidence, notwithstanding the protections of Rule 11(e)(6), Fed. R. Crim. P., or any other such law. Should this Plea Agreement become void, NDK agrees that it will waive any defense to any charges which it might otherwise have under any statute of limitations or the Speedy Trial Act from the date of the execution of this Plea Agreement.
22. This Plea Agreement constitutes the entire agreement between the United States and NDK concerning the disposition of the criminal charge in this case. This Plea Agreement cannot be modified except in writing signed by the United States and NDK.
23. The undersigned representative of NDK is authorized to enter this Plea Agreement on behalf of NDK as evidenced by the Resolution of the Board of Directors of NDK attached hereto and incorporated herein by reference.
24. A facsimile signature shall be deemed an original signature for the purpose of executing this Plea Agreement. Multiple signature pages are authorized for the purpose of executing this Plea Agreement.
25. The undersigned attorneys for the United States have been authorized by the Attorney General of the United States to enter this Plea Agreement on behalf of the United States.